Complaints by employees in respect of the right to a
redundancy payment or questions as to its amount may,
as we have seen, be made to an employment tribunal,
which will make a declaration as to the employee’s rights
which form the basis on which payment can be recov-
ered from the employer.
Procedure for handling redundancies
Any agreed formula must be followed, for example last
in, first out. Selection procedures may also be based on
poor work performance or attendance record and there
is no requirement on the employer to find out reasons
for this (Dooleyv Leyland Vehicles Ltd(1986)). If there
is no agreed procedure, the employer must decide after
considering the pros and cons in each case. It should
be noted that the dismissal may well be unfair if some
reasonable system of selection is not followed. In this
connection the EAT decided in Rogersv Vosper Thorn-
eycroft (UK) Ltd(1988) that ‘last in, first out’ is a rel-
evant system, but merely asking for volunteers is not.
There must be some criteria, though calling for volunt-
eers is acceptable as a preliminary step in the matter
of eventual selection. The decision was affirmed by the
Court of Appeal.
Everyone should as far as possible be allowed to
express their views, for example through elected repres-
entatives, if any. Every attempt should be made to reloc-
ate a redundant worker. Failure to do so can result in a
finding of unfair dismissal – unless, of course, there was
no chance of finding suitable alternative work. Fairness in
the search for alternative work involves looking at other
companies within a group (EAT decision in Euroguard
Ltdv Rycroft(1993)).
Selecting, say, a white, single, young woman or a West
Indian single man to go, rather than a married white
man with two children and a mortgage might appear to
be humane. However, unless the decision is made on the
basis of competence, experience, reliability, and so on,
the dismissal is likely to be unfair and also a breach of
discrimination legislation.Consultation over collective
redundanciesThe Collective Redundancies and Transfer of Undertak-
ings (Protection of Employment) (Amendment) Regula-
tions 1995 (SI 1995/2587) and 1999 (SI 1999/1925) apply.
The regulations substantially amend s 188 of the Trade
Union and Labour Relations (Consolidation) Act 1992
(TULR(C)A 1992) as follows:■The obligation to consult about redundancies now
arises where the employer is proposing to dismiss as
redundant 20 or more employees at one establishment
within a period of 90 days or less. This change has
removed the need to consult from some 96 per cent
of UK businesses.
■Where consultation is required, the employer must
consult all those who are ‘appropriate representatives’.
■Appropriate representatives of employees are:- employee representatives elected by them; or
- if an independent trade union is recognised by the
employer, representatives of the union.
Where the employees elect representatives and belong
to a recognised union, the employer has a choice of
whether to consult the union representatives or the
elected representatives. It should be noted that the regu-
lations extend the requirement to consult to non-union
workplaces. They further provide that:■Employee representatives may be elected by the em-
ployees for the specific purpose of consultation or
may be members of an existing works council or joint
consultative committee. In all cases the employee rep-
resentatives must be employed by the employer and
not be outsiders. No method of election is stipulated
in the regulations which means that ad hocproced-
ures as and when a redundancy situation is to arise
are acceptable.
■Consultation must begin ‘in good time’ as distinct from
the ‘earliest opportunity’ as was formerly required and,
in any case.Part 4Business resources
554
41 to 52 years =11 years at = 161 / 2 weeks
one-and-a-half weeks’ pay 231 / 2 weeks
It follows, therefore, that the redundancy payment would
be 23^1 / 2 weeks ×£330=£7,755
Consider also the case of an employee aged 62 dis-
missed on the ground of redundancy: he had been con-
tinuously employed for 30 years; his gross weekly wage
was more than £330. His redundancy payment will be
based on his last 20 years of service and he will be en-
titled to the current maximum of£9,900 (20 × 11 / 2 ×£330
=£9,900).